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A man can have sex with his wife without her consent – in effect legally rape her – but two adults who have consensual sex are committing a crime if even one of them is married to another person. That is how irrational India’s laws relating to sex and sex crimes continue to be, 70 years after Independence and more than five years after the brutal Nirbhaya gang rape shook the country’s conscience.

The country’s conscience was shaken yet again with a string of Nirbhaya-like cases in the last couple of months in Haryana. It is obvious that nothing has changed on the ground despite the protest marches, despite the candlelight vigils and despite a harsher law being enacted in 2013. It is now time for us to decide if we want to keep shaking our conscience each time a rape takes place or if we want to really do something concrete to drive down the number of such crimes.

It is quite clear that having harsh laws alone will not counter rape and other crimes against women. You need a more sensitive police force which does not see itself as the guardian of “family honour” and you need higher conviction rates in rape cases across the country.

Illustration: Uday Deb

The government too needs to wake up to today’s realities and not make jumpy attempts at trying to please the most regressive elements in our society. Its attempt at putting restrictions on so-called “explicit” condom ads on television gave out a message that it is out of sync about how people view sex, let alone sex crimes.

In recent days, the Supreme Court has shown a willingness to bring some sense into the sex-related laws, but you are left wondering if it is taking one step forward and two steps back.

Among the more sensible orders is the one which clarifies that a man who has sex with his minor wife would be guilty of rape. Also, the judges are keen to apply the landmark ruling on privacy as a guiding light to decriminalise consensual gay sex.

But barely three days before the observations on Section 377, a three-judge bench of the court also agreed to revisit Section 497 of the Indian Penal Code which bars women from being booked for adultery. As TOI had reported on January 6, the judges want to see if women can be treated as equal partners in the crime of adultery and be sent to jail for up to five years like men are.

However, at a time when most developed countries have decriminalised adultery, should we really be asking whether women too should be booked for having sex outside the bounds of marriage? Shouldn’t we be asking, instead, if it is time to do away with adultery as a crime altogether? If consent between adults is the basis for considering the decriminalisation of gay sex, then the same argument should apply for adultery as well.

Defenders of the adultery law argue that in almost all countries the law is expected to protect and preserve the moral principles of civilised society. But morality is a fluid entity that evolves and changes with time. It wasn’t too long ago that the practice of sati and child marriage had moral sanction. They don’t any more.

Among Asian countries which legalised adultery recently is South Korea. In its order in 2015, the country’s constitutional court defended its order by using the privacy argument. The judges said that even if adultery deserved to be condemned as immoral, the state should not intervene in the private lives of individuals.

Now that India too has clearly defined the scope of privacy, it is time for the state to step away from matters of love and sex and let grown up, mature individuals decide whether they want to remain in a marriage after one of them has cheated or whether they want to go their own separate ways.

The biggest challenge before the state, however, is sensitising the lower rung of the police force to the needs and demands of women who are increasingly aware of their rights. These cops are the first point of contact when a rape survivor and her family seek justice. These men often carry the same baggage of biases as a society that is keen to hold women responsible for rape.

The Justice JS Verma committee, formed after the Nirbhaya gang rape, has attacked exactly this attitude and said in its report that we need to rid ourselves of the concept of shame while adjudicating rape cases. That the police should not see itself as the arbiter of honour.

While there has been come criticism of the committee’s report, it has to be applauded for putting the focus on ‘bodily integrity’ while discussing women’s safety. It says, “The fundamental rights of women include safety and bodily integrity. The said rights, in turn, include secure spaces where they can exercise autonomy and free will.”

It is now time for us to use the Supreme Court’s privacy ruling and sensible recommendations from documents like the Verma committee report to create a more contemporary set of rules to govern our sex-related laws and crimes.